South Dakota Moves To Legalize Killing Abortion
Providers
A bill under consideration in the Mount Rushmore
State would make preventing harm to a fetus a
"justifiable homicide" in many cases.
By Kate Sheppard
Tue Feb. 15, 2011 3:00 AM PST
http://motherjones.com/politics/2011/02/south-dakota-hb-1171-legalize-killing-abortion-providers
A law under consideration in South Dakota would expand
the definition of "justifiable homicide" to include
killings that are intended to prevent harm to a fetus-a
move that could make it legal to kill doctors who
perform abortions. The Republican-backed legislation,
House Bill 1171, has passed out of committee on a nine-
to-three party-line vote, and is expected to face a
floor vote in the state's GOP-dominated House of
Representatives soon.
The bill, sponsored by state Rep. Phil Jensen, a
committed foe of abortion rights, alters the state's
legal definition of justifiable homicide by adding
language stating that a homicide is permissible if
committed by a person "while resisting an attempt to
harm" that person's unborn child or the unborn child of
that person's spouse, partner, parent, or child. If the
bill passes, it could in theory allow a woman's father,
mother, son, daughter, or husband to kill anyone who
tried to provide that woman an abortion-even if she
wanted one.
Jensen did not return calls to his home or his office
requesting comment on the bill, which is cosponsored by
22 other state representatives and four state senators.
UPDATE: Jensen spoke to Mother Jones on Tuesday morning,
after this story was published. He says that he
disagrees with this interpretation of the bill. "This
simply is to bring consistency to South Dakota statute
as it relates to justifiable homicide," said Jensen in
an interview, repeating an argument he made in the
committee hearing on the bill last week. "If you look at
the code, these codes are dealing with illegal acts.
Now, abortion is a legal act. So this has got nothing to
do with abortion." Jensen also aggressively defended the
bill in an interview with the Washington Post's Greg
Sargent on Tuesday morning. We have more on Jensen's
position here. UPDATE 2: Jensen spoke to Sargent again
on Wednesday morning, and signaled he might be willing
to change the bill.
"The bill in South Dakota is an invitation to murder
abortion providers," says Vicki Saporta, the president
of the National Abortion Federation, the professional
association of abortion providers. Since 1993, eight
doctors have been assassinated at the hands of anti-
abortion extremists, and another 17 have been the
victims of murder attempts. Some of the perpetrators of
those crimes have tried to use the justifiable homicide
defense at their trials. "This is not an abstract bill,"
Saporta says. The measure could have major implications
if a "misguided extremist invokes this 'self-defense'
statute to justify the murder of a doctor, nurse or
volunteer," the South Dakota Campaign for Healthy
Families warned in a message to supporters last week.
The original version of the bill did not include the
language regarding the "unborn child"; it was pitched as
a simple clarification of South Dakota's justifiable
homicide law. Last week, however, the bill was
"hoghoused"-a term used in South Dakota for heavily
amending legislation in committee-in a little-noticed
hearing. A parade of right-wing groups-the Family
Heritage Alliance, Concerned Women for America, the
South Dakota branch of Phyllis Schlafly's Eagle Forum,
and a political action committee called Family Matters
in South Dakota-all testified in favor of the amended
version of the law.
Jensen, the bill's sponsor, has said that he simply
intends to bring "consistency" to South Dakota's
criminal code, which already allows prosecutors to
charge people with manslaughter or murder for crimes
that result in the death of fetuses. But there's a
difference between counting the murder of a pregnant
woman as two crimes-which is permissible under law in
many states-and making the protection of a fetus an
affirmative defense against a murder charge.
"They always intended this to be a fetal personhood
bill, they just tried to cloak it as a self-defense
bill," says Kristin Aschenbrenner, a lobbyist for South
Dakota Advocacy Network for Women. "They're still trying
to cloak it, but they amended it right away, making
their intent clear." The major change to the legislation
also caught abortion rights advocates off guard. "None
of us really felt like we were prepared," she says.
Sara Rosenbaum, a law professor at George Washington
University who frequently testifies before Congress
about abortion legislation, says the bill is legally
dubious. "It takes my breath away," she says in an email
to Mother Jones. "Constitutionally, a state cannot make
it a crime to perform a constitutionally lawful act."
South Dakota already has some of the most restrictive
abortion laws in the country, and one of the lowest
abortion rates. Since 1994, there have been no providers
in the state. Planned Parenthood flies a doctor in from
out-of-state once a week to see patients at a Sioux
Falls clinic. Women from the more remote parts of the
large, rural state drive up to six hours to reach this
lone clinic. And under state law women are then required
to receive counseling and wait 24 hours before
undergoing the procedure. (Click here for an interactive
map of abortion restrictions.)
Before performing an abortion, a South Dakota doctor
must offer the woman the opportunity to view a sonogram.
And under a law passed in 2005, doctors are required to
read a script meant to discourage women from proceeding
with the abortion: "The abortion will terminate the life
of a whole, separate, unique, living human being." Until
recently, doctors also had to tell a woman seeking an
abortion that she had "an existing relationship with
that unborn human being" that was protected under the
Constitution and state law and that abortion poses a
"known medical risk" and "increased risk of suicide
ideation and suicide." In August 2009, a US District
Court Judge threw out those portions of the script,
finding them "untruthful and misleading." The state has
appealed the decision.
The South Dakota legislature has twice tried to ban
abortion outright, but voters rejected the ban at the
polls in 2006 and 2008, by a 12-point margin both times.
Conservative lawmakers have since been looking to limit
access any other way possible. "They seem to be taking
an end run around that," says state Sen. Angie Buhl, a
Democrat. "They recognize that people don't want a ban,
so they are trying to seek a de facto ban by making it
essentially impossible to access abortion services."
South Dakota's legislature is strongly tilted against
abortion rights, which makes passing restrictions fairly
easy. Just 19 of 70 House members and 5 of the 35 state
senators are Democrats-and many of the Democrats also
oppose abortion rights.
The law that would legalize killing abortion providers
is just one of several measures under consideration in
the state that would create more obstacles for a woman
seeking an abortion. Another proposed law, House Bill
1217, would force women to undergo counseling at a
Crisis Pregnancy Center (CPC) before they can obtain an
abortion. CPCs are not regulated and are generally run
by anti-abortion Christian groups and staffed by
volunteers-not doctors or nurses-with the goal of
discouraging women from having abortions.
A congressional investigation into CPCs in 2006 found
that the centers often provide "false or misleading
information about the health risks of an abortion"-
alleging ties between abortion and breast cancer,
negative impacts on fertility, and mental-health
concerns. "This may advance the mission of the pregnancy
resource centers, which are typically pro-life
organizations dedicated to preventing abortion," the
report concluded, "but it is an inappropriate public
health practice." In a recent interview, state Rep.
Roger Hunt, one of the bill's sponsors, acknowledged
that its intent is to "drastically reduce" the number of
abortions in South Dakota.
House Bill 1217 would also require women to wait 72
hours after counseling before they can go forward with
the abortion, and would require the doctor to develop an
analysis of "risk factors associated with abortion" for
each woman-a provision that critics contend is
intentionally vague and could expose providers to
lawsuits. A similar measure passed in Nebraska last
spring, but a federal judge threw it out it last July,
arguing that it would "require medical providers to give
untruthful, misleading and irrelevant information to
patients" and would create "substantial, likely
insurmountable, obstacles" to women who want abortions.
Extending the wait time and requiring a woman to consult
first with the doctor, then with the CPC, and then meet
with the doctor again before she can undergo the
procedure would add additional burdens for women-
especially for women who work or who already have
children.
The South Dakota bills reflect a broader national
strategy on the part of abortion-rights opponents, says
Elizabeth Nash, a public policy associate with the
Guttmacher Institute, a federal reproductive health
advocacy and research group. "They erect a legal
barrier, another, and another," says Nash. "At what
point do women say, 'I can't climb that mountain'? This
is where we're getting to."
Due to an editing error, an earlier, updated version of
this article that was briefly available online stated
that exemptions had been added to the bill after Mother
Jones inquired about the legislation. That was wrong.
Sorry.
People for the American Way, a major progressive
advocacy group, has issued a statement condemning the
judiciary committee's version of 1171.
UPDATE 2: Jensen is considering adding specific
protections for abortion providers to his bill, he told
the Washington Post's Greg Sargent on Wednesday morning.
He plans to meet with the South Dakota state attorney
general on Wednesday morning to discuss potential
changes to the bill. "There's no way in the world that I
or any other representatives wish to see abortion
doctors murdered," Jensen told Sargent. "So we're
looking at some language that will include that. We're
looking at some language that would protect abortion
providers." Jensen's "decision to consider changing the
bill amounts to an admission that the proposal may be
flawed and perhaps not as clear cut as he insisted,"
Sargent writes. He has more here.
Kate Sheppard covers energy and environmental politics
in Mother Jones' Washington bureau.
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